APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
542 N.E.2d 484, 186 Ill. App. 3d 467, 134 Ill. Dec. 305 1989.IL.1165
Appeal from the Circuit Court of Will County; the Hon. Raymond A. Bolden, Judge, presiding.
JUSTICE HEIPLE delivered the opinion of the court. BARRY and SCOTT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE
The defendant, Danny Williams, was charged by information with the offense of unlawful possession of a firearm by a felon in violation of section 24-1.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 24-1.1). The defendant filed a motion to suppress the .32 caliber revolver which was the only evidence against him. The trial court granted his motion and denied the State's motion for reconsideration. The State filed the required certificate of impairment and brought its appeal to this court. Because of our finding that the defendant lacked standing to seek suppression of the gun, we reverse.
The gun in question was seized from the apartment of defendant's girlfriend pursuant to a search warrant for defendant, his girlfriend, the apartment, and a car. The defendant was in the apartment at the time of the search, and the gun was found on the floor about two feet from him.
Officer Tim Simenson of the Crest Hill police department asserted in the complaint for search warrant that two reliable informants had told him that defendant lived in an apartment at 29 Mississippi, Joliet, with his girlfriend, Arthena Person. From this information, Simenson's own surveillance, and reports from other police officers, the court found probable cause for issuing the search warrant. The defendant and his girlfriend were in the apartment at the time the warrant was executed.
The defendant filed a motion to suppress supported by several affidavits from himself, his girlfriend, his mother, and his brothers. The affidavits denied that the defendant lived at the apartment. The affiants, defendant included, asserted that the defendant lived with his mother. The defendant slept overnight at the apartment, at most, once a week, and had no personal effects or clothing at the apartment. The affidavits additionally attacked the credibility of Officer Simenson and the informants. The motion to suppress asserted that the informants lied and that Officer Simenson either lied or acted in reckless disregard of the truth. Defendant sought a hearing under Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, on the truthfulness of the allegations in the complaint for search warrant.
The State filed a response challenging the legal sufficiency of the motion to justify an evidentiary hearing under Franks. The trial court found that a sufficient showing had been made in the affidavits to require a Franks hearing on the veracity of the complaint for search warrant. As a result of that hearing, the trial court found that certain statements in the complaint for search warrant were false or made with a reckless disregard for their truth or falsity. After those statements were eliminated, the court found that there existed insufficient evidence to establish probable cause. Accordingly, evidence seized under the search warrant, including the gun, was suppressed.
The State filed a motion for reconsideration, raising for the first time the issue of defendant's standing. The trial court ruled the raising of the standing issue untimely and reaffirmed its order of suppression.
We must first decide whether the State's failure to raise the issue of standing until after the Conclusion of the evidentiary hearing constituted waiver of the issue. Generally, a matter not presented to the trial court cannot be raised for the first time on appeal. One of the principal purposes of this rule is to prevent surprise to the opposing party, who is denied the opportunity to rebut or to present evidence on the issue. Once the case leaves the trial court, the opportunity to present evidence is gone. People v. McAdrian (1972), 52 Ill. 2d 250; People v. Holloway (1981), 86 Ill. 2d 78.
The question of whether the State waived the issue of standing by waiting until the motion for reconsideration is not discussed in the authorities cited by defendant. McAdrian concerned the State's raising an issue for the first time in the appellate court. Holloway specifically addressed the raising of standing for the first time in the appellate court where the State was appealing from a suppression order. Likewise, Steagald v. United States (1981), 451 U.S. 204, 68 L. Ed. 2d 38, 101 S. Ct. 1642, held that the government waived the issue of standing by failing to raise it in the district (trial) court or the court of appeals. Moreover, in Steagald, the government did not raise the issue in its Supreme Court pleading opposing certiorari. The government argued instead that the house which was searched was defendant's residence. Standing first was raised in the government's brief in the Supreme Court. Under those circumstances, "the Government, through its assertions, concessions, and acquiescence, has lost its right to challenge petitioner's assertion that he possessed a legitimate expectation of privacy in the searched home." (Steagald, 451 U.S. at 211, 68 L. Ed. 2d at 45, 101 S. Ct. at 1647.) Standing was clearly waived under such circumstances. Not so in the instant case, however, where standing was raised in the trial court.
We note that Steagald suggests that the opportunity to raise the issue of standing may be lost if the government fails "to raise such questions in a timely fashion during the litigation." For the reasons which follow, we hold that no ...